PETER Vs. RAMAKRISHNAN NAIR

JUDGEMENT

(1.) The appellant sued the respondent and another, to redeem a mortgage Ext. P-3, of the year 1118. The property mortgaged was at the time in the possession of another, under a pattapanayam Ext. P-1, of the year 1094, which for the present purpose may be deemed to be a mortgage. Provision was made in Ext. P-3, by which, the respondent was to redeem Ext. P-1, and to be in possession of the property for 10 years, at the end of which, was to submit to redemption, on receipt only of the actual amount paid to the prior mortgagee at the time of redemption on account of the value of improvements, in addition to the mortgage amount and the value of improvements made by him after redemption. The respondent sued the prior mortgagee for redemption of Ext. P-1 and obtained a decree Ext. P-2, under which he paid only a sum of Rs. 14 for improvements. When the appellant instituted the suit out of which this second appeal arises, after having taken an assignment of the equity of redemption, for redemption of Ext. P-3, he was met with the contention, despite the provision in Ext. P-3 limiting the claim for the prior improvements, that the respondent is entitled to be paid the present value of such improvements in full. That value has been assessed during the trial of the suit by a 'Commissioner' at Rs. 591.30 p. The first court, relying on the provision in Ext. P-3, allowed only Rs. 14 the amount actually paid to the respondent, but the Subordinate Judge in appeal allowed the claim in full.

(2.) The question arising for decision in this second appeal, turns chiefly on the construction and the application of S.17 in relation to S.4(1) of Act 29 of 1958. The latter section, so far as it is relevant, is as follows:

(3.) S.4 has be given effect to in conjunction with S.17. The relevant part of S.17 is as follows: